Macaskill v State Information Technology Agency (Pty) Ltd (SITA) and Others

SITA dismissed Macaskill. On 22 November 2019, a CCMA Commissioner found the dismissal unfair and awarded compensation payable by 15 December 2019. SITA launched a review application on 10 February 2020. On 28 February 2020, the Registrar advised that the record was available. SITA had 60 days (until 28 April 2020) to file the record per the Practice Manual but failed to do so, during the COVID-19 hard lockdown period. Under clause 11.2.3 of the Practice Manual, the review application was deemed withdrawn. Macaskill then launched a Rule 11 application on 15 June 2020 seeking to dismiss the review application and to have the arbitration award made an order of court under section 158(1)(c) of the LRA. SITA opposed, conceding the review was deemed withdrawn but opposing dismissal and the section 158(1)(c) application.

• Whether the Labour Court has jurisdiction to dismiss a review application that has been deemed withdrawn under the Practice Manual
• Whether a declaratory order is appropriate when the legal position is clearly set out in the Practice Manual
• Whether the Labour Court should exercise its discretion to make an arbitration award an order of court under section 158(1)(c) of the LRA where a review application, though deemed withdrawn, may potentially be reinstated

1. The application to dismiss the review application is dismissed for want of jurisdiction. 2. The application in terms of section 158(1)(c) of the LRA is refused. 3. No order as to costs.

1. Where a review application is deemed withdrawn under clause 11.2.3 of the Practice Manual and there is no order reinstating it, the Labour Court lacks jurisdiction to dismiss the review application under Rule 11 - there is nothing to dismiss. 2. A declaratory order is not appropriate where the legal position is clearly and unambiguously set out in statute or rules, there is no legal uncertainty or controversy between the parties, and the order would merely recite known legal principles rather than resolve a concrete dispute. 3. Section 158(1)(c) of the LRA confers discretionary power on the Labour Court. Where granting the order would prejudice the interests of justice, including a party's constitutional right of access to courts under section 34, the discretion should not be exercised in favour of granting the order.

The Court observed that even if a declaratory order is made stating that a review is deemed withdrawn, this has no binding effect as the affected party may still apply for reinstatement, and if granted, the declaratory order becomes academic, hypothetical and abstract. The Court noted that 'finality' is not an existing, contingent or future right or obligation of a party - rather it serves the purpose of the LRA. The Court also noted, without determining the issue, that SITA may have prospects of success on review (applying the jurisdictional review test of objective facts and correctness), and acknowledged that while SITA could have sought extension during the COVID-19 hard lockdown period, the hard lockdown circumstances were relevant considerations. The Court emphasized that when considering the interests of justice, a judge must strive to balance the interests of competing parties. The Court stated that making an award an order of court under section 158(1)(c) would allow Macaskill to execute to SITA's prejudice before its legal dispute is determined, which does not accord with the interests of justice.

This judgment clarifies the Labour Court's approach to deemed withdrawn review applications and declaratory relief. It establishes that: (1) the Labour Court lacks jurisdiction to dismiss a deemed withdrawn review application until it is reinstated (following SG Bulk and distinguishing Eskom); (2) declaratory relief is not appropriate merely to restate clear legal provisions or achieve 'finality' where no concrete legal dispute exists; (3) courts exist to resolve disputes, not provide legal opinions; and (4) section 158(1)(c) relief should be refused where the interests of justice, including the constitutional right of access to courts under section 34, would be prejudiced. The judgment is significant for its analysis of when declaratory orders are appropriate and its emphasis on balancing competing interests when exercising discretion under section 158(1)(c).